Court of Appeal for Ontario

Citation: R. v. Almaktari, 2010 ONCA 802

Date: 2010-11-29

Docket: C51295

Before: Winkler C.J.O., Sharpe and Karakatsanis JJ.A.

Between:

Her Majesty the Queen Respondent

and

Walid Almaktari Appellant

Counsel: Christopher Hicks, for the appellant Randy Schwartz, for the respondent Crown

Heard and released orally: November 24, 2010

On appeal from the sentence imposed by Justice Robert A. Clark of the Superior Court of Justice dated September 16, 2009.

ENDORSEMENT

[1] We are satisfied that the sentencing judge respected the findings of the jury implicit in its verdict of manslaughter and that it was open to him on the evidence to find the facts as “close to murder”. The sentencing judge made no error in principle relating to aggravating and mitigating factors or in applying the parity principle. There was good reason for imposing a much higher sentence on the appellant given the co-accused’s guilty plea and the judge’s findings regarding the appellant’s role in this offence. While the sentence of 15 years is high, we are unable to conclude it is unfit for this brutal aggravated homicide.

[2] However, the sentencing judge erred in principle in his decision to give only 1.22 days credit for each day of pre-trial detention on the facts of this case. The sentencing judge found that the appellant would not avail himself of programs while in jail based only upon his pre-charge failure to pursue educational or other programming. In our view, there was insufficient evidence to support a finding that the appellant, who had never spent a lengthy period of time incarcerated, would not have taken advantage of programs had they been made available pending trial. As a result, deference does not apply.

[3] Given the difficult conditions of the pre-trial detention, we see no reason to depart from the general practice of awarding credit of two for one for a total credit of six years, six months.

[4] We would therefore maintain the effective sentence of 15 years, but increase the credit for pre-trial detention, leaving eight years and six months to be served from the date of sentence.

[5] Leave to appeal is granted, the appeal is allowed and the sentence is varied accordingly. We would not interfere with the order under s. 743.6 of the Code, the Weapons Prohibition order and the DNA order.

“Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“Karakatsanis J.A.”